People v. Henderson

• Citation: 129 Cal.Rptr. 844,58 Cal.App.3d 349
• Decision Date: 17 May 1976
• Docket Number: Cr. 27459
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Rastus Lee HENDERSON, Defendant and Appellant.

Page 844

129 Cal.Rptr. 844

58 Cal.App.3d 349

The PEOPLE of the State of California, Plaintiff and Respondent, v. Rastus Lee HENDERSON, Defendant and Appellant.

Cr. 27459.

Court of Appeal, Second District, Division 4, California.

May 17, 1976.

Hearing Denied July 28, 1976.

Cornell R. Young, Beverly Hills, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Donald J. Oeser and Penina S. Van Gelder, Deputy Attys. Gen., for plaintiff and respondent.

JEFFERSON, Associate Justice.

In Count I of an information defendant was charged with an assault with a deadly weapon upon Dallas L. Barnes, a peace officer, in violation of Penal Code section 245, subdivision (b). ¹ In Count II defendant was charged with the commission of the same offense upon Roger L. Gripe, a peace officer. It was further alleged that, at the time of the commission of each offense, defendant used a firearm, to-wit, a revolver. Defendant was found guilty of each offense by a jury and the allegations as to the use of a firearm were found to be true. Defendant's motion for a new trial was denied, proceedings were suspended and defendant was placed on probation subject to various terms and conditions. Defendant appeals from the judgment of conviction (order granting probation under Pen.Code § 1237). ²

On April 12, 1973, defendant was residing at 920 West 71st Street in Los Angeles. On this date, at approximately 7:00 a.m., eight police officers went to the vicinity of this residence. The officers were under the command of Officer Richard Ortiz. Approximately six days prior to April 12, 1973, Officer Ortiz had secured from a magistrate a search warrant authorizing the search of defendant's residence for the presence of heroin. The search warrant specifically excused compliance by the police with Penal Code section 1531. ³

Between 7:00 a.m. and 9:00 a.m., the police officer detail had the residence under surveillance but observed no activity within the residence nor any person enter or leave it. The plan of operation decided upon was that, at 9:00 a.m., the officers would effect entry from all doors simultaneously, without knocking. The entry was to be effected by knocking the doors down.

Officer Ortiz and another officer stationed themselves at a dining room door while Officers Barnes and Gripe stationed themselves at the rear door of the premises. The testimony of the officers was that they yelled 'police officers' practically simultaneously with kicking in the doors to effectuate a break-in entry.

Officers Barnes and Gripe succeeded in breaking the rear door and found themselves in a den which was sealed off from the rest of the house with walls and a locked door. Two shots were fired from the inside of the premises before Officers Barnes and Gripe succeeded in breaking the den door. One shot came through the den wall. Officer Gripe testified that he heard a woman and child screaming from a room other than the den before he heard the shots.

Defendant's wife and child were found in the master bedroom and defendant was found in the bathroom with a gun in his hand. It was established that the two shots had come from the gun held by defendant.

Officer Gripe testified that, when confronted in the bathroom, defendant had on a T-shirt and a pair of trousers. Officer Mikkelson, who made entry from the front door, testified that he went to the bathroom and found defendant in custody of Officer Gripe and that defendant was wearing a T-shirt and underwear shorts--not a pair of trousers. Officer Mikkelson also testified that, before breaking the front door to gain admittance, he announced: 'Police officers. Open the door'; that he heard officers at the side and rear entrances announcing 'police officers' simultaneously with the breaking to gain entry.

Mrs. Carmella Rodriguez testified that she lived two houses away from defendant's residence and that on the morning in question she was in her yard around 9:00 a.m. and heard the words, 'This is the police--Open up'; that she then ran into her house and, from the inside of her house, heard the same words again and the crash of glass and wood breaking. She estimated that a few minutes elapsed between the demand for entry that she heard and the sound of breaking glass and wood.

Defendant testified in his own defense and admitted firing the first shot intentionally but stated that the second shot went off by accident. Defendant testified that he was asleep and was awarkened by his wife indicating that someone was breaking into the house. Defendant denied hearing anyone announce that they were police officers and testified that he had no reason to believe that the breaking way by police when he fired to scare the intruders away.

Defendant made a pretrial motion to suppress evidence under Penal Code section 1538.5. This motion was denied. Defendant's motions for acquittal under Penal Code section 1118.1, made at the conclusion of the prosecution's presentation of evidence and again after both sides had rested, were denied by the trial judge.

As one ground for reversal, defendant claims error in the issuance by the magistrate of a search warrant containing a 'no-knock' provision. Defendant relies upon Parsley v. Superior Court (1973), 9 Cal.3d 934, 109 Cal.Rptr. 563, 513 P.2d 611, which held that magistrates are without power to give prior authorization in a search warrant for a police officer to violate Penal Code section 1531 by effecting a forcible entry without prior notice to the occupant of his authority and purpose, and a refusal of admittance from the occupant, and that the prosecution may not rely on such advance excusal to justify the officers' failure to comply with section 1531.

The prosecution points out that Parsley was decided subsequent to the dates of issuance and execution of the warrant in the case at bench, and can have no effect unless it be given retroactive application. There appears to be no case law indicating whether or not Parsley is to be given a retroactive application. Although Parsley was decided on August 28, 1973, the search warrant in that case was executed on March 17, 1972. Since the judicial authorization for noncompliance with Penal Code section 1531, declared illegal in Parsley, occurred more than a year prior to the judicial authorization involved in the case at bench, we consider that notions of fairness dictate that Parsley be made applicable to the judicial authorization issued in the case at bench in April 1973. We hold, therefore, that failure of the officers to comply with Penal Code section 1531 cannot be predicated on judicial authorization contained in the search warrant.

The prosecution contends that, even if Parsley is interpreted to render the 'no-knock' provisions of the search warrant invalid in the case at bench, the error is harmless because the officers were entitled to make a no-knock entry under the exception set forth in Parsley. It is defendant's position that the police officers' break-in entry did not satisfy the requirements of the exception for an unannounced entry and, therefore, that such officers were not 'engaged in the performance of (their) duties' under Penal Code section 245, subdivision (b)--which precludes defendant's conviction under that section.

The Parsley court stated 'that failure to comply with sections 1531 and 844 does not compel application of the exclusionary rule 'if the specific facts known to the officer before his entry are sufficient to support his good faith belief that compliance will increase his peril, frustrate the arrest, or permit the destruction of evidence.' (Citations.)' (Parsley, supra, 9 Cal.3d 934, at p. 938, 109 Cal.Rptr. 563, at p. 565, 513 P.2d 611, at p. 613.) Further elaboration upon the exception is found in People v. Dumas (1973), 9 Cal.3d 871, 109 Cal.Rptr. 304, 512 P.2d 1208. Dumas points out that, in the typical case, the police officer discovers the facts that justify immediate entry only After approaching the premises. (See People v. Maddox (1956) 46 Cal.2d 301, 294 P.2d 6 and People v. Tribble (1971) 4 Cal.3d 826, 94 Cal.Rptr. 613, 484 P.2d 589.) Dumas, however, also points out that, in some exceptional circumstances, unannounced entry into a defendant's premises has been upheld on the basis of information received by the officers prior to the arrival at the scene of the entry. (See People v. Smith (1966) 63 Cal.2d 779, 48 Cal.Rptr. 382, 409 P.2d 222 (officers had cause to believe that the persons sought were armed and had previously shot police officers); People v. Hammond (1960), 54 Cal.2d 846, 9 Cal.Rptr. 233, 357 P.2d 289 (officers had prior information that defendant was presently armed and under the influence of heroin).)

'Police knowledge of the existence of a firearm excuses compliance with announcement requirements only where the officers reasonably believe the weapon will be used against them if they proceed with the ordinary announcements. (Citations.) This belief must be based on specific facts and not on broad, unsupported presumptions.' (Dumas, supra, 9 Cal.3d 871, at pp. 878--879, 109 Cal.Rptr. 304, 309, 512 P.2d 1208, 1213.)

In Dumas, the police officer in charge of the search had obtained reliable information from a confidential informant that defendant possessed several firearms in his apartment and that he invariably answered the door with a loaded gun in his hand. The Dumas court concluded that the police officers making the search in Dumas 'could reasonably infer from this activity that a substantial possibility existed (defendant) would employ deadly force in order to prevent his apprehension. . . . They (the searching officers) could therefore reasonably conclude at the time of entry that they were faced with an emergency and that compliance with the announcement requirements would substantially increase their peril. On these facts we hold that the officers' failure to...